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2000 DIGILAW 318 (CAL)

BIMAN ROY v. SAIBAL MITRA

2000-07-06

BHASKAR BHATTACHARYA

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B. BHATTACHARYA,J. ( 1 ) THIS revisional application is at the instance of an applicant under Order 9 Rule 9 of the Code of Civil Procedure and is directed against Order No. 55 dated December 12, 1999 passed by the learned Civil Judge, Junior Division, Siliguri in misc. Case No. 5 of 1995 thereby rejecting an application for appointment of an Advocate commissioner for examination of a Doctor staying in Calcutta. ( 2 ) THE opposite party filed a suit for eviction against the petitioner in the Court of learned Civil Judge, Junior Division, Siliguri, district-Darjeeling in O. C. Suit No. 47 of 1991 and the said suit was decreed ex parte. In execution of the said decree, the opposite party, having taken possession, the petitioner came forward with an application under Order 9 Rule 13 of the Code of civil Procedure for setting aside the said ex parte decree thereby giving rise to Misc. Case No. 3 of 1993. ( 3 ) THE said Misc. Case No. 3 of 1993 came up for hearing on January 7,1995 when the learned trial Judge dismissed the said Misc. Case for default. ( 4 ) THEREAFTER the petitioner filed an application under Order 9 Rule 4 of the Code read with section 151 for restoration of the said application under Order 9 Rule 13 of the code of Civil Procedure thereby giving rise to misc. Case No. 5 of 1995. In the said Misc. Case No. 5 of 1995, the case made out by the petitioner was thet he was a resident of Calcutta and on January 7, 1995 a petition for adjournment was filed on the ground of illness of the petitioner but the learned trial Judge rejected such application. Along with the application, a medical certificate dated January 9, 1995 issued by Dr. A. Dey, M. D. , Calcutta was annexed in support of his illness. ( 5 ) THE opposite party contested the aforesaid application under Order 9 Rule 4 of the code of Civil Procedure thereby opposing the prayer of the petitioner. ( 6 ) IN the aforesaid Misc. Case No. 5 of 1995, the petitioner filed an application under Order 26 Rule 1 of the Code of Civil Procedure for appointment of an Advocate commissioner for examining Dr. ( 6 ) IN the aforesaid Misc. Case No. 5 of 1995, the petitioner filed an application under Order 26 Rule 1 of the Code of Civil Procedure for appointment of an Advocate commissioner for examining Dr. A. Day, who had treated the petitioner at Calcutta during the relevant time on Commission on the ground that Dr. Dey was an old man and was suffering from various illness and that due to illness it was not possible for him to take any strenuous journey. It was further stated that apart from the aforesaid fact, he was a busy practitioner having innumerable critical patients, as a result if he was required to go to Siliguri to depose, such journey such journey will be at the risk of lives of many patients. The petitioner thus prayed for examination of Dr. Dey at his residence on Commission and the petitioner expressed his readiness to bear the entire expenditure. The aforesaid application was opposed by the opposite party and by the order impugned herein the learned trial Judge has rejected such application. Being dissatisfied, the petitioner has come up in revision. ( 7 ) MR. Mukherjee, the learned counsel appearing on behalf of the petitioner has submitted before this court that the learned trial judge rejected the application on the sole ground that no material was placed before the court showing illness of Dr. Dey. But the learned trial Judge, Mr. Mukherjee contends, did not consider the other ground that he was a busy practitioner and a number of critical patients were under his treatment. Under such circumstances such a person should not be forced to leave Calcutta at the risks of lives of so many patients. Mr. Mukherjee further draws attention of this court to the provision contained in Order to Rule 19 of the Code of Civil Procedure and contends that Calcutta being undisputedly beyond 500 Kms. from Siliguri, his client is entitled to get benefit of the said provision. 6. Mr. Roychowdhury, the learned senior counsel appearing on behalf of the opposite party has seriously opposed this application and has contended that so far the ground of illness is concerned, the learned trial Judge rightly held that in the absence of any materials showing illness of Dr. Dey there was no justification of issue of Commission. Mr. 6. Mr. Roychowdhury, the learned senior counsel appearing on behalf of the opposite party has seriously opposed this application and has contended that so far the ground of illness is concerned, the learned trial Judge rightly held that in the absence of any materials showing illness of Dr. Dey there was no justification of issue of Commission. Mr. Roychowdhury further submits that if a person can regularly attend his nurishing home and look after patients, he must be prepared to give evidence in Court. According to mr. Roychowdhury, merely because a person is a busy practitioner, that is no ground of his examination of Commission. 7. After hearing the learned counsel for the parties and after going through the materials on record I am at one with Mr. Roychowdhury that the petitioner could not prove the illness of Dr. Dey and as such on the ground of illness no Commissioner should be issued. I also agree with him that Siliguri being connected with Calcutta by Air Service, the benefit of Order 16 Rule 19 of the Code is not available to the petitioner in view of the proviso to the said provision. ( 8 ) BUT the fact remains that the said Doctor is a busy practitioner and the petitioner as per liberty given by P. K. Sen,j. while entertaining this application has placed a certificate of Dr. Dey disclosing that he was very much involved with some critical patients and it is not possible for him to leave Calcutta. The aforesaid fact has not been disputed by the opposite party. ( 9 ) AS mentioned earlier, the definite case of the petitioner in the application under Order 9 Rule of the Code is that at the relevant point of time he had fallen sick at Calcutta and was under the treatment of Dr. Dey. There is no dispute that the opposite party has disputed such fact. Therefore, the success of the application under Order 9 Rule 4 depends upon the veracity of the aforesaid statement made by the petitioner. Under such circumstances, the petitioner wants to examine Dr. Dey on commission with an undertaking to bear all the expenses of such commission including that of opposite party's counsel. In my view, in these type of cases court should not force the petitioner to bring Dr. Under such circumstances, the petitioner wants to examine Dr. Dey on commission with an undertaking to bear all the expenses of such commission including that of opposite party's counsel. In my view, in these type of cases court should not force the petitioner to bring Dr. Dey, A Doctor of repute to go to Siliguri by depriving his service to some critical patients. Mr. Roychowdhury has admitted that one cannot go to Siliguri and come back on the same day even by air. Under such circumstances, in my opinion, it is a fit case where the prayer of the petitioner should be allowed. Therefore, the learned trial Judge acted illegally and with material irregularity in refusing the prayer of the petitioner. I, thus, set-aside the order impugned and allow the application for examination of Dr. Dey on commission provided the petitioner bears the entire expenditure of such commission including the board and lodging of the opposite party and his counsel in Calcutta and the fare by a. C. II Tier in a railway compartment. The revisional application is thus allowed. No order as to costs. Revision allowed.